In the wake of the Supreme Court’s pro-employee ruling that employees who make verbal complaints are protected under the Fair Labor Standards Act’s (FLSA) anti-retaliation provision, the Department of Labor (DOL) has issued new guidance on the topic of retaliation and the legal protections provided to those who complain or cooperate in an investigation involving overtime pay / wage and hour violations. The Wage and Hour Division of the US Department of Labor published its fact sheet number 77A to address the FLSA’s strict prohibition of retaliating against any employee who has filed a complaint or cooperated in an investigation.
The FLSA provides broad protection from retaliation and states that it is a violation for any person to “discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.”
What this means:
• Both oral and written complaints are protected.
• No current employment relationship is required – former employees are protected from retaliation by a former employer.
• Protection from retaliation applies to all employees, even where the employee’s work and the employer are not covered by the FLSA.
• Any employee who is “discharged or in any other manner discriminated against” due to filing a complaint or cooperating in an investigation, can pursue a claim by either filing a complaint with the DOL or by filing a private lawsuit.
• Remedies available to victims of retaliation include: employment reinstatement, lost wages and an additional equal amount as liquidated damages.
The reality is that most employers, and particularly those with good competent legal counsel, almost never take any retaliatory action. They are well aware of the potential consequences and significant costs should they attempt to retaliate in response to complaints about their overtime pay / wage and hour practices. They understand that by retaliating they are likely turning a manageable wage claim into a claim that is far worse and that can quickly spiral out of control – costing them substantially more in the end.
